Misjudged

by James Chandler

  “And has the jury reached a verdict?”

  “We have, Your Honor.”

  “Please deliver the verdict form to the bailiff,” Daniels directed. “The defendant will stand.”

  The bailiff took the form from O’Hanlon and walked it to Daniels, who perused it briefly and handed it to the clerk of court. With shaking hands and a quiver in her voice, the clerk read aloud: “We the Jury, duly empaneled in the above-entitled matter, having well and truly tried this matter, find the defendant, Tommy Olsen, with respect to the charge of murder in the first degree, guilty.”

  Tommy went down a bit, but Sam steadied him. Muffled exclamations of relief came from Emily’s family and supporters on the prosecution’s side of the courtroom. Tommy’s few supporters and his soon-to-be ex-wife cried quietly.

  “Does the State wish to have the jury polled?”

  “No, Your Honor,” Ann replied, quickly sitting down. Her legs were wobbly, and her stomach was doing flip-flops. She’d done it! Her first murder conviction.

  “Your Honor, the defense would like the jury polled,” Sam said.

  Turning to the jury, the judge asked them collectively, “Is this the verdict reached by each of you?” All jurors nodded yes, whereupon the judge addressed each juror by number. Sam watched each closely for signs of deception. The last juror polled was Juror 465. “Juror Number 465. Was this your verdict?”

  “It was,” she said, then looked straight at Sam and added, “And it wasn’t even close.”

  “Thank you. Please be seated. Let the record show that all jurors have been polled and that all jurors have indicated that this was their verdict.

  “Ladies and gentlemen of the jury, your duties are now complete. We thank you for having performed this sacred duty. You will get your expense checks here shortly and then be released. Please remember to take personal property with you. You may now discuss this case with anyone you wish, although you are not obligated to. One final caution: please respect the jury process and the anonymity of your fellow jurors. Bailiff, please remove the jurors.”

  After the jurors had been removed from the courtroom, Daniels announced a five-minute recess. As he left, he heard the eruption behind him.

  “Sonuvabitch!” Daniels exclaimed angrily, throwing his robe onto a chair in the corner of his chambers. “I can’t believe it!”

  “What is it?” Mary had heard the commotion and come running. “What is it, Judge?”

  “Guilty, damn it!”

  “Your Honor, I will not have such language around here! You’ve heard plenty of verdicts over the course of the last twenty-five years, and I do not understand what would make you take the Lord’s name in vain.”

  “It was wrong, Mary,” he growled.

  “Well, goodness, Judge. Juries are not infrequently wrong. Now, let me get you a glass of whiskey, and you calm down before you end up having another one of those atrial fibrillations like you did two years ago. I’ll be right back.”

  “Mary, get Judge Howard on the line. Tell him I need to see him. Now.”

  “Well, okay,” she said, turning for her office. “And it wouldn’t hurt to hear the word ‘please’ around here every once in a while.”

  Daniels poured himself a stiff drink, then opened his desk drawer with one hand while feeling in his pocket with the other for his cutter. Finding it, he rose, walked across his chambers, and looked through his cuspidor until he found what he was looking for. Returning to his desk, he pulled out an engraved lighter his daughter had given him when he was named to the bench. He shook the antique lightly and, after suitably trimming the end of his cigar, set about lighting it. Smoke billowed satisfactorily, and he returned to the overstuffed chair with his cigar and drink.

  “Another round,” Ann slurred. Her secretary, the investigators, and even Rebecca Nice cheered. The whole office had made its way to the bar following the verdict. After several celebratory toasts, they’d settled in to do some serious drinking.

  As Ann looked around the barroom, it occurred to her that she felt as good—as alive—as perhaps she ever had. She’d done it. Her first capital case and she’d gotten a conviction. Now, all that remained was to persuade the jury to impose the death penalty. And while she was comfortable that a Custer County jury would do just that, she knew that it didn’t really matter. The fact that she had obtained the conviction was enough to give her career the boost she needed. Very soon, she’d be in a position to leave these redneck losers in her dust.

  Over the top of her glass she saw Punch approaching. “Have a drink, Punch,” she said, shaking the ice in her glass. She spoke carefully, trying to fully enunciate her words. “We done good.”

  “I’ll pass,” he replied. “Is there somewhere we can talk for a minute?”

  “Now?”

  “Yes, now.”

  She pointed at an unoccupied corner table and carefully followed Punch to it. He observed she was thoroughly intoxicated already. “Punch, what can I do for you?”

  “I think that conviction is wrong, and I think you know it, too.”

  Ann raised an eyebrow. “Excuse me,” she slurred. “But aren’t you the one who arrested the man? Aren’t you the one who put together the case against this man?”

  “Well, of course, but that was before we knew about the other prints and the DNA.”

  “Right. And the jury convicted the man. They knew there were prints that didn’t match Tommy’s. They knew there was DNA that didn’t match. Now, don’t be such a limp-dick, and have a drink.” She indicated the bar.

  “But they weren’t given the whole story,” Punch said, recoiling. “And neither was Sam. And the judge’s DNA . . . you withheld that from everyone.”

  “Because it didn’t matter. I told you that. The information wasn’t ex…excul…it didn’t matter. It wasn’t even admissible. In my opinion the jury would have reached the same verdict. Even when Sam hit us with that last-minute witness claiming one print matched another, it simply didn’t matter.”

  “But you can’t know that for a fact!”

  “Wouldn’t have mattered,” Ann said dismissively.

  “But you can’t know that!”

  “Of course not,” she said, and took a long drink. “But I can and did assess the evidence, and I made the call based on my best professional opinion.”

  Twenty feet away a loud roar went up as the members of the prosecutor’s office toasted success. Punch watched as Rebecca Nice drank a shot glass full of amber liquid.

  “Did you discuss it with Rebecca?”

  “That’s none of your concern.”

  “I think it is,” Punch insisted. “I need to know how far up the chain this goes.”

  “You don’t need to know shit,” Ann seethed, leaning toward Punch so her face was just inches away. He could smell the whiskey on her breath. “You need to get back to the station and type a report or eat a donut or do whatever it is you small-town cops do when you aren’t rousting drunks or addicts.”

  The other people at the table had turned their attention from celebrating Tommy’s conviction and getting drunk to watching Ann and Punch closely.

  “Ann—”

  “Detective, we’re done here.”

  “I’m not letting this go, Ann.” Punch met her stare. “Enjoy your drink, counselor,” he said over his shoulder as he left.

  “What was that all about?” Nice asked Ann when she had returned to the festivities.

  “Oh, nothing,” Ann said. “Just a difference of opinion.”

  “You shoulda listened to me,” Fricke said as he unwound the cord to the commercial vacuum. “If you’da listened to me, you’da saved five bucks.”

  “Yeah,” Frac said. “Maybe. I liked him.” He was on his hands and knees, scrubbing a particularly stubborn heel mark from the courthouse floor. The hundreds of spectators blackened the ancient marble floor daily, and Frac was once again reduced to cleaning it by hand. “He’s nice,” he said.

  “Who?”

&nb
sp; “Tommy.”

  “You kiddin’ me? The guy’s a killer, Frac.”

  “No, he’s nice. He smiled at me when I saw him.”

  “Well, what the hell does that mean? Lotta people smile when they look at you. You’re a pitiful-lookin’ fella; people gonna smile. Damn, you are one dumb sonuvabitch,” Fricke said as he powered up the machine.

  Frac returned to his scrubbing.

  “I told you!” Fricke said. “The guy was guilty. I knew it from the minute I looked at him.”

  “I liked him,” Frac repeated, taking his mop and bucket from the closet. “I don’t think he did it.”

  “What the hell are you talking about?” Fricke asked. “A jury of twelve people said he did it. Well, he did it. That’s how the system works.”

  “Well, maybe they was wrong.”

  “And maybe someday you’ll be president. But right now, he’s guilty and I got your money, bitch.” Fricke waved a five-dollar bill at Frac. “And I’m gonna spend it on something for myself.”

  It was happy hour, and by the time O’Hanlon made it across the street from the courthouse to the Longbranch, condensation was forming on the outsides of two glasses containing an acceptable IPA.

  “So,” Howard began, “how did it go?”

  “Guilty!”

  “Well, I know that. How was your experience as a juror?”

  “Well,” O’Hanlon began, then stopped to take a long pull from one of the drinks. “It was a helluva deal. That’s all I got to say. We got in that jury room and the fur started to fly. I mean, two or three of them folks had serious doubts.”

  “So, what did you do?”

  “Well, like you told me, I said, ‘Let’s look at the required elements of the crime, and then line up what evidence we got. So, once we did that, I was able to talk a couple of them folks over to our side, and that last guy, well, he’s self-employed, so I don’t think his business woulda survived another day, to hear him talk. But he had a heart issue and left, so they brought in Elva Miller as the alternate, and she was all set to convict even before we started deliberating.”

  “So, no doubts in your mind?” Howard ventured carefully.

  “Well, I ain’t gonna say I don’t have any doubts. I mean, I know that, like you told me, this ain’t Law and Order like on TV, but it seems to me the cops coulda done a little better job.” He finished the first drink. “I mean, they had a set of unidentified fingerprints in the house and on the weapon that matched, and even some unidentified semen on that gal’s sheets, and we never did get any kind of motive for why he killed her. I’d feel better if I knew all that.”

  Howard took a long pull of the IPA. “Seems to me you folks did a good job and reached the right verdict. Glad you got yourself elected foreman, too.”

  “Well again, your advice was key. I just volunteered right when we got back there. None of the others wanted the job, and being foreman allowed me to set the schedule, just like you said it would.”

  Well, let’s keep that between us, shall we?” Howard suggested, signaling to the bartender.

  “Judge, I got a question for you,” O’Hanlon began. “Your prints. What was that all about?”

  “It was nothing. A family member of hers died. I sent some flowers, is all. Pete, another for my friend here.”

  Sam was walking to the jail to see Tommy when his phone rang. “Mr. Johnstone? Russ Johnson here. I’m waiting for my plane back to Denver.”

  “How can I help you?” Sam said. “I’m in a hurry.”

  “Well, I got to thinking about those prints and your client. I wish I could have been of more help.”

  “It’s a little late now.”

  “I know, but I got to thinking . . . you said your client’s old lady—the gal that left the prints—you said she got arrested in New Orleans?”

  “I did,” Sam said, crossing the street. “So what?”

  “Do you know when?”

  “No, does it matter?”

  “Well, maybe.”

  “What do you mean?” Sam asked, moving aside to avoid foot traffic. “What are you saying?”

  “Well, it’s a long shot, but a lot of stuff—evidence, I mean—got lost after Hurricane Katrina.”

  “So, you think—”

  “Well, now, I ain’t sayin’ anything, other than just to tell you what might have happened.”

  “Okay, Russ. Thanks, I’ve got to see my client.”

  “Okay, counselor.”

  The absolute worst part of a trial lawyer’s job was meeting with a client who had lost at trial. Inevitably and invariably, when clients prevailed, they celebrated the righteousness of their cause. When they lost, they blamed their lawyer. Sam sat heavily opposite Tommy in the small cell reserved for defendants and counsel.

  “Tommy, I don’t know what to say.”

  “Nothin’ to say. We lost.”

  “I know. And we’ll appeal. But right now we have to start getting ready for the next phase. The sentencing phase.”

  “Sam, they’re gonna stick a needle in my arm and put me to sleep, ain’t they?”

  “Not if I can help it, Tommy.”

  “Yeah, well. To be truthful, your record ain’t so good so far, is it now?”

  “I know.”

  “I mean, you did your best, but like we used to say in the Corps: ‘results count.’”

  “They do.”

  “And to date, your results have sucked,” Tommy said, slowly warming to his subject. “I mean, you lost every argument, every motion, every objection, and the goddamned trial! So, either that judge and jury was against me from the start, or you don’t know what the fuck you are doing!”

  It was unfair. Sam felt his ire and knew his face was reddening, but he held his poise. “There is another possibility, Tommy.”

  “What’s that, Sam?”

  “That the jury reached the right verdict.”

  “You sonuvabitch!” Tommy exclaimed, standing. “You never did believe me, did you?”

  “Well, I did,” Sam said, standing as well. “But you have to admit the evidence was overwhelming, and you made the decision not to do a deal or plead not guilty by reason of mental illness or deficiency. Either one of those things would have been a better solution. But you said no.”

  “Sam, I said no ’cause I didn’t do it! I did not kill that woman! I keep tellin’ you and anyone who will listen that!”

  “I hear you. Look, we’ve got to get through this, Tommy,” Sam pleaded. “I need to start preparing for the penalty phase. I’m going to need your help.”

  “Lotta good being cooperative’s done me so far.”

  “Tommy, I need you to trust me.”

  “I keep telling you, that ain’t worked out so well for me so far.”

  “This is not over, Tommy! I need you to trust me and work with me. Please.”

  “Lemme think about it.”

  “Tommy, we really need to—”

  “I said lemme think about it! I’ll let you know Sunday.”

  “Tommy, whatever you decide. But I’m telling you right now, I won’t quit. I’m going to work my ass off for the sentencing phase and I’m going to try and get you out on bond when we appeal. You can help me, or not. But it would be a helluva lot easier with your cooperation.”

  Tommy sat still, staring at the floor. “Whattaya think?” he asked at last.

  Sam looked at Tommy for a long time. “No.”

  “No?”

  “No. Tommy, I do not believe any jury will sentence you to death.”

  “I wanna believe you, Sam,” Tommy said. “But to date your record of predicting what the jury might do ain’t been so good.”

  “That’s fair.” Sam nodded, then changed the subject. “Tommy, when was Becky arrested?”

  “Oh, hell. Long time back.”

  “Before the hurricane?”

  “Right before. She had to take a bus back,” Tommy said.

  “No shit,” Sam said, thinking. “What are the chances?�
�

  “What do you mean? That dumb bitch—”

  “Look, there’s something I’ve got to do,” Sam said, standing to leave.

  “What’s that?”

  “I need to talk with Becky.”

  54

  “Well?” Punch demanded. He had stormed past Mary and was standing in Daniels’s chambers, angry to the point of being out of control.

  “Well, what?” Daniels asked. “Do I need to call security, Detective?”

  “You admitted you had to tell Sam! You said you would!”

  “I thought I would probably have to,” Daniels admitted, pointing to a chair in his office. “Sit down, Detective.”

  “But you didn’t say shit!” Punch made no move for the chair.

  “No, I didn’t. Not yet.”

  “So, a guy who might be innocent just got convicted!”

  “Indeed, but Detective, as I recall it was you—not me—who charged him.”

  “Your Honor! How could you let it happen? You knew there was exculpatory information out there, yet you allowed Ann to keep it from Sam. You said you had a plan.”

  “I did.”

  “So, you’ve left me no choice but to go to the Supremes and the newspaper.”

  “That would be a mistake.”

  “Why?”

  “I told you I would handle this,” Daniels began. “And I will.”

  “How?”

  “Be in court tomorrow at eight a.m.”

  “But there’s nothing scheduled for tomorrow. It’s a Saturday. The trial’s over!”

  “There will be a hearing tomorrow,” Daniels said. “See you at eight a.m., Detective. Now, get out of my goddamned chambers and close the door behind you.”

  The small apartment was on the end of a row of dilapidated units. Rent was low and subsidized. Toys littered the small, weed-infested yard in front of each. Hip-hop was blaring from one of the windows. Sam found the unit he was looking for. “Mrs. Olsen,” he said through the screen door after knocking loudly. Inside, he could hear children playing. “I’d like to talk with you.”